Q. The Constitution of the UK is known to be unwritten.

In recent years, it has been argued that

the constitution is now written but uncodified. Discuss.(25)

The constitution is the skeleton of a state, on the basis of which its organs can function. In 2001,
the House of Lords Select Committee on the Constitution defined the constitution as the set of
laws, rules and practices that create the basic institutions of the state, and its components and
related parts, and stipulate the powers of those institutions and the relationship between
different institutions and between those institutions and the individual.

Another dependable definition is “...the whole system of government of a country, the collection
of rules which ' establish and regulate or govern the government." (Wheare, K.C. Modern
constitutions, 1966). In simpler terms ‘constitution’ refers to the principles, rules and laws that
establish and underpin a political system. The Constitution creates and defines the powers of
different political institutions and determines how they should relate to each other. It sets out the
limits of these powers and regulates the relationship between the state and its citizens.
Constitutions place both limitations and obligations on governmental organisations in their
relationship with the people and provide opportunities for the public to influence the political
process.

Unwritten generally means the lack of written sources which can act as evidence when
reference is necessary thus it can not be found as text on paper or other permanent mediums.
The classification within these terms can result in either a written constitution or an unwritten
constitution. On the other hand, uncodified means that it is not formally, comprehensively or
systematically organised into a platform that can easily be referred to. An uncodified constitution
can be a blend of both written and unwritten sources, scattered in different areas and thus can
not be found in a single document.

The UK is often said to have an 'unwritten' constitution in a simplified manner, but this is not
technically correct; it is mostly written, both in terms of quantity and significance, but in different
documents scattered across different areas. It has never been codified; brought together in a
single document. In this respect, the UK is different from most other countries, which have
codified constitutions. But not all: New Zealand and Israel also lack a codified constitution.

The British constitution is unusual as the vast majority of democratic nation-states (excluding
the exceptions mentioned) have a codified constitution but the United Kingdom has no single
document that comprises its constitution. There is no book or document entitled 'The British
Constitution'. Instead, the Constitution is located in a variety of sources, both legal and non-
legal, written and unwritten.

A codified constitution is a specific document entitled, for example, The Constitution of Ireland,
and there will be a 'Constitutional' or 'Supreme’ Court whose function is to interpret the
constitution and determine the lawfulness of other legislation or governmental actions by
reference to the constitution. The constitution itself will form what is often referred to as a 'higher
order law'; it will be the highest law in that state.

The UK constitution was never entirely unwritten to begin with hence the simplified claim is
factually incorrect. Rather, it would be more accurate to say that the UK has a mostly written but
uncodified constitution. The reason behind this stems from the fact that, unlike other countries
that went through revolutions or constitutional crises, the UK did not have a single defining
moment that required a written constitution to be established. Another reason is practicality; the
UK's system of government is based on flexibility and adaptability, rather than rigid rules. It
would also challenge the fundamental doctrine of parliamentary sovereignty as the constitution
would have to be considered the highest source of law.

It is, however, argued that in recent years, the UK constitution has become more written than
before. In contrast, the classification of the UK constitution being uncodified is a fact that is
accepted globally. In order to determine whether the UK Constitution has indeed become more
written than before, we must first look at the sources of the Constitution.

In the UK, 'constitutional law is not distinct from 'other' law in the way that it is in many countries.
In the words of Turpin and Tomkins, 'we find constitutional rules mingled with the rest of the law,
in statutes and subordinate legislation, is the common law and decisions of judges' (Turpin, C.
and A. Tomkins British government under the constitution 2011).

The written sources include Acts of Parliament(statutes), Common Law, Scholarly Writing, and
treaties and standards. The unwritten sources include conventions and prerogatives. Evidently,
in terms of quantity, it is obvious that the constitution of the UK is more written than unwritten. In
terms of importance as well, the written source includes statutes which is the highest source of
law due to the principle of parliamentary supremacy, making the written source in a way, more
superior than the unwritten one. Common Law in this circumstance refers to the binding
principles formed by judges, also known as judge-made law. It is very clear that as time has
passed, the volume of common law and statutes has increased at an astonishing speed due to
the large number of cases that are filed every day and the large number of bills being passed
every year. The UK Supreme Court alone issued around 25-30 significant rulings in 2023,
several of which had constitutional implications (UK Constitutional Law Association). This
includes cases related to asylum and immigration law, taxation in devolved regions, and the
limits of judicial review. From 2019-21, 54 new bills received royal assent and became statutes,
11 of which are constitutional(UK Parliament statistics). Over the years, even some unwritten
conventions have taken a written form. For example, the Convention of Ministerial
Responsibility takes the form of the Ministerial code.

The unwritten sources have also expanded over the years. For instance, the importance of
conventions, such as the monarch's role in granting royal assent or the prime minister's
obligation to command a majority in Parliament, has become more pronounced due to political
shifts, especially following Brexit and debates about devolution. However, the increase is
certainly not as drastic as that of the written sources.

In the context of the UK constitution, prerogatives refer to special powers and privileges
historically held by the monarch but now exercised mainly by the Prime Minister and other
government ministers. These powers are part of the unwritten constitution and are not set out in
any statute, meaning they have evolved through tradition and custom over time. Similarly,
Conventions are unwritten rules or practices that have developed over time and are followed by
government institutions, even though they are not legally enforceable. The classification of
Legal and Non-Legal sources is irrelevant in this context hence we will not dwell on that.
It must be noted that both the unwritten sources have developed over time historically. In the
modern context, due to the advancement of technology, it is highly unlikely that constitutional
matters will not be recorded in some way. Even if not written on paper, the text might still be
stored on the internet or online database or even video or audio taped which will still form within
the written form.

Therefore, it can certainly be concluded that overtime, the UK constitution which was mostly
written yet uncodified has moved even more towards the written form with a, comparatively,
lower amount and importance being left for its unwritten counterpart. There is, however, no
argument regarding the fact that it is still uncodified and will very likely remain so for a multitude
of reasons.

Q. The UK constitution is uncodified. It has been argued that it needs to be codified. Give your
arguments for and against codification. (25)

The constitution is the skeleton of a state on the basis of which its organs can function. In 2001,
the House of Lords Select Committee on the Constitution defined the constitution as the set of
laws, rules and practices that create the basic institutions of the state, and its components and
related parts, and stipulate the powers of those institutions and the relationship between
different institutions and between those institutions and the individual.

The constitution of the United Kingdom (often also referred to as 'the British constitution') is
unusual as it is uncodified. Unlike the vast majority of democratic nation-states (Israel and New
Zealand being other exceptions), the United Kingdom has no single document that comprises its
constitution. There is no book or document entitled 'The British Constitution'. Instead, the
Constitution is located in a variety of sources, both legal and non-legal, written and unwritten.

Uncodified means that it is not formally, comprehensively or systematically organised into a

platform that can easily be referred to. An uncodified constitution can be a blend of both written
and unwritten sources, scattered in different areas and thus can not be found in a single
document. The UK is often said to have an 'unwritten' constitution in a simplified manner, but
this is not technically correct; it is mostly written, both in terms of quantity and significance, but
in different documents scattered across different areas. It has never been codified; brought
together in a single document.

A codified constitution is a specific document entitled, for example, The Constitution of Ireland,
and there will be a 'Constitutional' or 'Supreme’ Court whose function is to interpret the
constitution and determine the lawfulness of other legislation or governmental actions by
reference to the constitution. The constitution itself will form what is often referred to as a 'higher
order law'; it will be the highest law in that state. In the UK, 'constitutional law is not distinct from
'other' law in the way that it is in many countries. In the words of Turpin and Tomkins, 'we find
constitutional rules mingled with the rest of the law, in statutes and subordinate legislation, is the
common law and decisions of judges' (Turpin, C. and A. Tomkins British government and the
constitution, 2011)

The reason behind this lack of codification stems from the fact that, unlike other countries that
went through revolutions or constitutional crises, the UK did not have a single defining moment
that required a written constitution to be established. The constitution of a state is usually
drafted as a result of a fundamental political event, a so-called 'constitutional moment': for
example, a revolution (France 1789), the creation of a new state or country (the USA 1787), the
conferral of independence (India 1949) or following war or a change in political structure
(Germany 1948)

Accordingly, no two states will have identical constitutions. According to Finer, Bogdanor and
Rudden, p.7. 'all constitutions contain elements that are

autobiographical and correspondingly idiosyncratic Different historical contexts have generated

different preoccupations: and different preoccupations have generated different emphases.
This also goes some way towards explaining why it is that the UK has not yet codified its
constitution. When contrasted with many countries, the UK has had a relatively stable history in
which a pragmatic and evolutionary approach has generally dominated.
When the question arises as to whether the UK constitution should be codified or should remain
uncodified, a classic starting point is to consider the supposed advantages and disadvantages
of an uncodified versus a codified constitution. The uncodified nature of the UK constitution
makes it incredibly flexible. The constitution has been modified frequently over many years in
response to changing circumstances. This allows for a pragmatic approach, where different
things can be tried, tested and developed, with an optimal arrangement being honed over time.
In contrast, other countries with hard-to-change codified constitutions have been unable to
update their political systems in line with changing attitudes and political realities. The issue of
gun ownership in the United States provides one often-cited example of this, where controls
have been hard to implement because of the 2nd Amendment.

The distinction in the debate about codification is whether a constitution is rigid or flexible. This
refers essentially to the ease (or difficulty) with which amendments might be made to it. The
absence of codification in the British constitution means that there are no special procedures to
be followed in relation to making constitutional changes. A simple majority (51 per cent) in
Parliament can pass legislation which effects constitutionally significant change. This is a
notable difference from states with a codified constitution, where the constitution will be
entrenched and change or amendment will require a special procedure to be followed, such as
a referendum or a super-majority in the parliament or legislative body.

When thinking about the debate around the codification of the British constitution, several
practical issues (in addition to the more ideological views) are also of relevance. Who should (or
could) draft a constitution? What would it include? Would it be a statement of the constitution as
it is currently or an attempt to reform it? The question of the enhanced role played by the
judiciary under a codified constitution is of particular importance as it would ultimately be the
court that would interpret and thus define the constitutional text.

The constitution itself will form what is often referred to as a 'higher order law'; it will be the
highest law in that state. Thus, where a codified constitution exists it will be the role of the
judges to interpret It. Within the UK constitution, this would raise additional complications,
particularly in relation to the fundamental doctrine of parliamentary sovereignty.

Having an uncodified constitution is also more democratic. Rather than being bound by the
decisions of past generations, it allows each successive generation to influence the constitution
through the representatives they elect. If a party with a constitutional reform agenda is elected,
they are able to carry out what the people have voted for. The new Labour government of 1997
had a wide-ranging constitutional programme, including devolution and human rights, that might
have been difficult to implement otherwise. In an uncodified constitution, it is elected politicians,
rather than unelected judges, who have the final say.

In contrast, however, it can also be argued that the uncodified constitution argues that it leaves
the political system open to abuse. In the UK system, there are few checks on the power of a
government with a majority in the House of Commons, which could alter the rules for its own
advantage. In theory, a powerful government could abolish the devolved legislatures and repeal
the Human Rights Act. There are also few barriers against a government rushing through poorly
thought-out changes to the constitution.

The counterargument to flexibility is, of course, that if something can be very easily amended,
then perhaps the protection afforded by it is not as strong as it should be (or could be if this
constitutional protection were entrenched). Other arguments include the reduced accessibility of
a constitution and the lack of awareness of such matters within society.

For some the UK’s constitution is pragmatic, for others it is piecemeal. In other words, changes
often happen in stops and starts and through gradual, sporadic tweaks. When the constitution
isn’t considered as a whole, they say, it can lead to unintended negative consequences.

Finally, many argue that the UK’s uncodified constitution is confusing and ambiguous. This
makes it more difficult for citizens to fully understand, and therefore to know when a government
is abusing its position. This lack of clarity can also be exploited by those in power to get away
with things that would be more difficult if the rules were clearer. It also can make the business of
governing harder, as there will be doubts surrounding the roles and responsibilities of different
political institutions. Proponents of a codified constitution argue that stating clearly in one place
how the political system operates would enable the government to better serve the public and
the public to better engage with the government.

In summary, the primary benefits of further codification are a reduction in uncertainty

and an increase in transparency about the constitutional rules governing the UK. The
the argument is that recently drafted non-legal texts already provide these benefits.
Furthermore, the government in the UK has, at least according to international standards,
functioned relatively well without a formally codified constitution for generations. These facts
suggest that the benefits of further codification are likely to be minimal. Therefore, rather than
using their scarce resources on codifying the constitution, UK lawmakers should focus on
initiatives where the benefits are more apparent.